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Posted On: May, 26 2015

The importance of issuing a claim for wrongful dismissal in the right forum became abundantly clear in the recent decision Bray v Canadian College of Massage and Hydrotherapy, 2015 Can Lii 3452.

The plaintiff, Kelly Bray, brought a wrongful dismissal and discrimination claim against her former employer, the Canadian College of Massage and Hydrotherapy, in Small Claims Court. The Small Claims Court is limited to a strict monetary jurisdiction of $25,000 in Ontario. In his decision, Deputy Justice Winny held that Ms. Bray, an instructor and employee at the College for 9 years, was wrongfully terminated and discriminated against as a new mother. Deputy Justice Winny awarded Ms. Bray $42,700 in damages, but due to the Court’s monetary jurisdiction, Ms. Bray had to forgo $17,700 when her award was reduced to $25,000.

The practical implications of this decision for plaintiffs are important.

First, though Ms. Bray was limited to the Small Claims Court’s monetary jurisdiction, she still had to prove each element of her claim in the same manneras she would have had to in the Ontario Superior Court of Justice. In this particular case, Ms. Bray had brought a claim for wrongful dismissal, discrimination damages, punitive damages, and aggravated damages. She was successful in proving, and was awarded (at least notionally) all but the aggravated damages. Had Ms. Bray brought her action under the Ontario Superior Court of Justice’s Simplified Procedure, these same facts could have resulted in an award for the full amount of damages she had proven. The Bray decision is a reminder that plaintiffs should carefully determinewhether damages relating totheir claim could reasonably be expected to exceed $25,000. If so,the action should be brought in the Ontario Superior Court of Justice and not in Small Claims Court.

Another important aspect of this decision is that Deputy Justice Winny does not particularize the breakdown of the final $25,000 award. From the reasons it is stated that Ms. Bray successfully established $20,000 in discrimination damages, $17,700 for compensation in lieu of reasonable notice, and $5,000 in punitive damages. How much of each of these heads of damages are included in the final award is unclear, but important, because human rights and other general damages (which amount to $25,000 in the Bray decision) can be treated in a tax-free manner, while the $17,700 awarded for lost income from employment would be subject to income tax. 


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